Steph Stradley

The Criminalization of Your Online Life

June 11, 2020 by Steph Stradley Leave a Comment

Computers, cell phones, the internet, and social media have transformed the practice of law and criminal law specifically. My legal career is now long enough that I remember what it like before these things were in wide use.

I sometimes wonder what percentage of criminal cases and other trouble would not exist but for this technology.

Life is precious, and I want everyone to live their best lives. Sometimes the best way to prevent problems to share information that everyone should know, perhaps don’t, or maybe need a reminder.

Here are some thoughts that are not legal advice but should be common sense but sometimes isn’t:

Assume nothing is anonymous.

You should always assume that what you say and do online can be discovered even if you intend for it not to be.

There are many ways this is done. Intercepted. Found by others. Found during legal discovery after a dispute. Employers discovering it. Governmental entities creating or taking over websites and monitoring those communications. You shared it with someone. They share it with someone else.

Most of what you do online leaves digital traces. The sites you visit often know a lot about you.

I once worked at a media site where we could read everything that a person said when they forwarded an article. When I helped moderate a popular website, I could see users’ IP addresses (a numerical label assigned to devices). If someone created a trolling account, we could often see who else had that same IP address.

Your physical location can be discovered when you take your cell phone places.

You might be saying, yeah, but I am cautious about my privacy and know ways to keep my computer and online life secret. Good luck with that. No matter how careful you are, motivated people and governments can usually find it.

The First Amendment speech protections do not apply to everything you say.

You should always assume though you may be able to say what you want in America, you may not be protected from the consequences of your speech. Other people can use their own speech to say something about it.

Some laws, like defamation laws, punish you for certain types of speech.

And though the government should not punish you for speech protected under the Constitution, they sometimes try to through unconstitutional laws and enforcement of them. It is not easy to fight for your rights.

And the First Amendment applies to the government trying to control speech, not usually private entities who limit speech.

The short takeaway? First Amendment law is a specialized area, and just because you have a right to do or say something, does not mean it will be consequence-free, respected, or easily defended.

The web makes it easier to get in trouble.

People establish laws to arrange how people get along in society. Computers, cell phones, the web, and social media make it easier to get in contact with others, which also makes it easier to get in trouble with others.

There are huge lists of cybercrimes that did not exist when I started practicing law, and each year more actions are turned into crimes that did not use to be crimes.

But even beyond that, pretty much every area of the law has ways where people are their own worst enemies by what they post online or where they visit.

Strangers can misinterpret what you post online and use it to punish you.

Criminal trials are a bad way to find out the full life of a person. It is an adversarial process, with rules that restrict what evidence is seen by the jury.

In an adversarial process, the prosecutor may be able to see everything in your digital life and give it the worst interpretation in retrospect even if it has an innocent explanation.

You may know who you are as a person and what is in your heart. But outsiders may just judge the entirety of you by what words and acts they can see, and sometimes that is stuff on your computer, cell phone, and what you post online.

The first impression that people have of you is often the one that sticks with people, and that can be difficult to change. The “presumption of innocence” is given lip service when “everybody knows they’re guilty” is what reflects human nature.

For example, if you post pictures of yourself with guns, and then later use lawful self-defense, a prosecutor may try to use that to tell the jury you are an aggressive gun nut.

If you post a lot of outrageous statements that you mean as a joke, others may not read it the same way.

In the Anglo-American system of justice, historically, people were only supposed to be convicted based on what they did, not who they are as a person. That said, the legislative trend is to create more criminal exceptions to that general rule, with some statutes that likely are unconstitutional. But just because I think something is unconstitutional, does not mean that it would be easy to defend or that a judge would agree with me.

Also, social media can be used as circumstantial evidence to show elements of a crime, like whether someone intended to do an action.

The web never forgets.

If you delete digital information or social media posts after you get into trouble, it can be considered destroying evidence in some legal contexts. Often it still can be found if someone is looking for it.

That said, it may not be a bad idea every once in a while to consciously consider what you have posted in the past and whether you still think it reflects who you are as a person. If not, maybe delete your post, delete that social app.

Even then, for some things, the web never forgets, and it may be difficult to leave no digital trace.

Take care where you hang out on the web.

The best and worst part of the internet is that no matter your interests, you likely can find people to share those interests. Sometimes that leads people into trouble they would have never faced if they did not hang out in those places.

Website algorithms that are trying to keep you using their site will suggest more content to you: If you like this person or content, you will like this person or content.

This can be helpful or hurtful. These algorithms can direct you to extreme and outrageous people and content, ones intended to get people’s attention for various reasons, some recommending actions that can get you into legal trouble.

I think of this like my experience with a bad cheesecake. If you store cheesecake in the fridge next to bacon, it can take the bacon’s flavor and become bacon-flavored cheesecake. Maybe you are good with that. Maybe that is not what you want.

Sometimes you should reflect on whether the people and places you give the most attention to in both real life and on the web actually benefit your life and are a net positive.

Please live your life with informed intention.

I am not suggesting censorship. Or self-censorship. I am just reminding you how the world is, both good and bad.

What I am suggesting is that when you do and say things online, you make it an intentional, informed choice, and know the potential consequences. Some times that is an obvious choice, and sometimes it is not.

The web can be a manipulative place, and it can be easy to slowly and accidentally get caught up in bad things.

Does Business Insurance Cover Coronavirus Losses?

March 31, 2020 by Steph Stradley Leave a Comment

People running businesses are scrambling to figure out how to deal with their financial losses and expenses from coronavirus COVID-19 business interruptions. Including me.

I like sharing explainer Q&As with people who know more about subjects than I do and am using this blog post to share with others what I learned about what types of business insurance cover coronavirus COVID-19 losses.

This is a basic explainer and not legal advice, and I tried to ask questions that would be helpful to both non-lawyers and lawyers.

The following is a Q&A with Daniel P. Barton of the Barton Law Group. Law is a very specialized field like many, and lawyers often ask each other questions. I’ve been friends with Dan for almost my entire legal career, and he is the first person I call when I have questions about insurance coverage issues and specifically, business interruption claims.

Dan Barton is Board Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law and Board Certified in Civil Trial Law by the National Board of Trial Advocacy. He has vast experience in understanding insurance coverage issues in unusual events, and as a part of his practice, consults with policyholders’ about their insurance coverage and rights.

Q&A with Dan Barton on Coronavirus COVID-19 Business Insurance Claims

What types of businesses may have insurance that helps pay for money lost when their businesses shut down due to coronavirus COVID-19?

Any business that carries commercial property insurance or business owner’s insurance policy coverage.

According to the American Property Casualty Insurance Association (APCIA), American small businesses may lose $220-383 billion per month during the COVID-19 outbreak, creating around 30 million coronavirus insurance loss claims.

They believe that these small business insurance claims would be ten times the number of claims that they have ever handled in one year.

Remarkably, this estimate of coronavirus business interruption losses does not take into account COVID-19 global losses, large and medium businesses, and event cancellations.

Generally, how do you determine whether a loss is covered by business insurance?

Typically, an event must occur that is a named peril that you can find in your policy, or if an “all risk” policy caused by a peril that is not excluded.

Most policies require that there has been direct physical loss caused by the peril. This is where things get very fact and policy specific. There may be a few ways to obtain coverage without a direct physical loss.

There are some situations that appear promising for coronavirus-related coverage under property policies, general liability insurance, D&O liability insurance, and event cancellation insurance

Here are some examples where direct physical loss may not be necessary. A careful analysis of the law and policies under each is required and technical beyond our Q&A scope:

1. First-Party Property/Time Element Claim Under Policy with Express Communicable Disease Coverage Grant

2. Event Cancellation Insurance Claim

3. First-Party Property/Time Element Claim

4. Ingress/Egress Claim Under First-Party Property/Time Element Insurance Policy

5. Civil Authority Claim Under First-Party Property/Time Element Insurance Policy – For example, your supply chain was interrupted when a supplier shut down plant operations due to a coronavirus-related quarantine ordered by the government.

6. Claim Under Directors and Officers Liability Insurance Policy

How do businesses know if they have the right type of insurance to pay for these coronavirus COVID-19 losses?

Normally, I would suggest consulting your agent first. A modern global pandemic is uncharted territory with few risk managers savvy enough to have purchased specific coverage for a named virus. Read your policy and contact your agent or professional with questions.

As a part of my practice, I review policies and determine whether businesses have business interruption coverage that covers their losses, including now, coronavirus COVID-19 losses.

What is an “All Risk” policy? Does that cover coronavirus COVID-19 losses?

Simply stated, an all risk policy covers all risks (perils) that are not specifically excluded.

Voila, coronavirus or COVID-19 is not specifically excluded in my all risk policy, so I have coverage. Not so fast, first, it may be excluded under an exclusion expressly naming bacteria, biological agents, or virus. Some policies exclude contaminants. Contaminants are usually defined in your policy. This definition may contain viruses.

If not, the direct physical loss requirement by a covered peril, as interpreted in some jurisdictions, may still kill your claim.

You still need a direct physical loss to your property or in some instances to an adjacent property, with some exceptions, namely, event cancellation coverage.

What is “Business Income Loss Coverage?” May that cover coronavirus COVID-19 business income losses?

Business income loss coverage covers your loss, profits, and expenses that you normally have but don’t because you are completely shut down. In some scenarios, it will cover the cost of cleanup or decontamination.

What is a “Pandemic Coverage Endorsement?” May that cover coronavirus COVID-19 losses?

This is an endorsement bundled or add on to your policy that may name the coronavirus or arguably a virus that is in the same family.

The Pandemic Coverage Endorsement is your clearest path to business interruption coverage for COVID-19 losses.

What is “Civil Authority Coverage?” May that cover coronavirus COVID-19 losses?

Civil authority is when the government causes your business to shut down completely. Depending on the specific wording of the coverage and what the governmental restrictions are will guide whether it covers losses or not.

Most policies require direct physical damage to your property or nearby property with some narrow exceptions.

So these declarations by local, state, and federal governmental authorities may affect the way that contracts and insurance works?

Yes. When the government makes these declarations, it does not just affect whether the government provides aid to areas. For insurance and other contracts, it can trigger claim events.

Your decision to voluntarily close without official government authority will not trigger coverage.

Do the insurance documents differ from business to business, state to state?

Insurance documents are different from policy to policy and can differ within the same state. So just because someone else’s business in your area has this insurance, does not mean you do.

With all insurance issues, you need to read the policy carefully.

If you have insurance where the policy looks like it will cover the losses, will the insurance company contact you to ask about your losses?

No. You must make a claim. The IRS is not going to notify you about tax deductions, and likewise, insurance companies are not going to advise you on how to take their money.

What is the best way to contact your insurance company about losses due to coronavirus COVID-19 shutdowns?

All policies state how to put them on notice to make a claim. You must follow their procedures and make a record.

IMPORTANT: The caveat, the way a claim is reported may trigger coverage or a denial.

It is critical you know all your rights and obligation under the policy and governing law before you give notice of your COVID-19 claim. To analogize, it is a bit like rubbing the bottle and saying the magic words before the genie will come out of the bottle.

How do you prove the amount of your loss for Coronavirus COVID-19 losses?

The policy will state your deductible, what is covered, and some will give examples on how to calculate damages. After that determination is made, it becomes a bookkeeping or CPA exercise.

Businesses should be keeping good records for business and IRS purposes, and the same applies for making COVID-19 business insurance claims.

How long do you have to make claims for your Coronavirus COVID-19 losses? Is it better to make an early claim, or does it matter?

In Texas, you generally have two years to make claims covered by the insurance code sections for consumers (541,542). You may have four years for breach of contract, but lose your statutory damages afforded to you in the insurance code.

There are commercial policies that require you to make a claim in one year and make it in New York (Where there is no bad faith insurance law). If your policy has this New York forum selection clause, do not sit on what rights you have left and consider changing insurance agents.

I have litigated the issue with mixed results. If you have a forum selection clause stating your disputes will be settled outside of Texas and have coverage, you may want to challenge the clause legally. For me, this made a million-dollar difference to a client.

What are the maximum losses that businesses can get these types of insurance?

The maximum losses generally are in your declarations page of your policy stated as an amount per occurrence. A deductible will be applied.

Most policies contain different deductibles for different types of losses. For example, you may have a $1,000 theft deductible and a 2% wind damage deductible. The same goes for business interruption. A careful reading of the entire policy is critical.

…..

I’d like to thank Dan for sharing knowledge on this topic. Please note, this is not something that my firm handles, so do not email me on this topic. You can contact Dan if you would like more information on the subject or believe you may have a business interruption loss claim.

In any event, please stay safe, and I am sorry we are all going through this.

Like with other blog posts here, if you have helpful information on this topic beyond what is in this blog post, you can put it in the comments below. Sometimes I update explainer blog posts based on topics discussed in the comments.

As some of you know, the comments are moderated by me when I get around to it. I am the sole judge of what is helpful and good, and zero spam comments will be published. Instead, they will be shot straight into the sun or perhaps mocked first, and then shot into the sun.

The Ezekiel Elliott Case Shows How Ruinous NFL Policy Is

September 5, 2017 by Steph Stradley 1 Comment

If you were to design and execute the worst possible domestic violence policy you could think of, it would likely look like how the NFL is handling the Ezekiel Elliott case.

I’ve read all the public legal documents on this case.

Hundreds of pages. It is difficult to convey how nauseated with anger and disgust I am with how the NFL has handled this matter.
Most of the writing on about the Ezekiel Elliott case involves the legal issues. Or the sordid details. Understandable, as the NFL decided to make this news.

Very little of it focuses on the real and sick harm the NFL is doing to many people with their everything is a hammer approach.
The only way this ends up getting changed is if the NFL and its owners decide to change it, and so I am writing this specifically for that audience first. The NFL is made up of many, many people, and I am hoping to appeal to ones that can change this.

As an attorney for many years, I have worked to craft policies for large corporations, and I know that can be hard to do well. I am also very familiar with domestic violence as a subject from the prosecution, defense, and real-world perspectives. I’ve written about NFL discipline issues since 2006, as fans have many questions about these types of cases.

The NFL is committed to holding the players to “a higher standard” than the legal process but what they are doing is ruinous to all.

Fully predictable that the Ezekiel Elliott case would be awful for all.

Before you read the following, I strongly suggest reading the previous piece I wrote for some additional context:
Ezekiel Elliott and the NFL Domestic Violence Policy, August 11, 2017
I wrote this the day the Ezekiel Elliott suspension was announced by the NFL’s “confidential letter,” which of course, wasn’t. The NFL personal conduct policy has always been problematic because how poorly the NFL churns one-sided investigations, issues punishment.
That the NFL is terrible at doing investigations makes it worse when they do them for sensitive topics like domestic violence.
In the piece, I noted that the relatively new way the NFL handles domestic violence issues is expensive, overly-long, privacy-invading, deterrent to reporting, and provides no real and fair mechanism for the player to show innocence.
I then explained why and how the Ezekiel Elliott case would end up as a disaster.
Just the description in the letter of the process was an obvious sham to me. Sounded official and legal and neutral to a non-legal person but was just a thrown together PR-focused process. With more information available now, the process is far worse than the original letter suggested.
The following is why the NFL Domestic Violence policy is counterproductive and ruinous to pretty much every stakeholder involved using the Ezekiel Elliott case as the latest example. Here is a link to Elliott’s Petition to Vacate Arbitration Award and related documents. (Update 9/6/17: All document links are updated to the excellent The Sports Esquires website)
Being able to see these details allows for a further exploration of how terrible the NFL’s handling of this has been.

Bad for Survivors of Domestic Violence.

Hostile Questioning.
If I were representing an abused person, I would not have them cooperate with the NFL. Why?
How does it help that person to cooperate? Does an NFL suspension of a player help them at all? Does offering privacy-invading details of their life help them?
Apparently, in the Ezekiel Elliott case, the woman claiming abuse was interviewed by the NFL investigator two times formally, with recording and transcript, and four times with follow-ups.
(Though her name is widely and publicly shared, including by her, I do not care to do that here because it is not necessary for my points. There are two people who know for sure what happened. Even if her account is inconsistent and not credible and threatening to Elliott, it is also possible that she was abused. Whatever is the situation, I feel bad that the NFL policy even means I am discussing this).
Usually, those of us on the outside do not see the type of questioning. This time we can.
I found the nature of the questioning of the woman to be hostile and privacy invading. I don’t think it was intended that way but people do all sorts of things in life they don’t intend to be abusive but are. It certainly wasn’t as hostile or thorough as it would be from a defense perspective, but that doesn’t mean it wasn’t awful in every respect.
The woman’s credibility in the case is an essential point to Elliott’s discipline. So the NFL questioned her.
For no benefit to her.
In previous NFL discipline cases, non-lawyers being questioned by lawyers have found the experience to be very intimidating. In both Deflategate and Bullygate, non-lawyers expressed how intimidating the questioning was, how they felt like they were being treated like liars and that the lawyers ignored important context if it didn’t fit what the NFL’s narrative.
As a lawyer, I’ve been made available for questioning in legal proceedings and even with nothing at stake, the process isn’t particularly comfortable.
Privacy Invading.
As I noted, because suspension is the punishment, Ezekiel Elliott’s case and the credibility of the witnesses is now news to teams, fans, fantasy football, betting.
The woman who is the subject of this action revealed extremely personal information about herself. More personal than I know about pretty much anybody. Ezekiel Elliott and other witnesses revealed private information about himself and her as well.
The NFL has tried to shift responsibility to the NFLPA for “victim blaming.” No, the entirety of this debacle of a policy is fully and completely on the NFL.
The NFLPA’s sole purpose is to serve its members. The ethical obligation for the NFLPA lawyers is to zealously represent their clients. They are doing that.
The NFL’s job is to football. They do have PR concerns, and the hastily put together domestic violence policy was created as part of a series of PR disasters. Unfortunately, PR-driven policies coming from crisis usually are bad. Like this is.
In the real legal cases instead of this sham procedure, there are ways where privacy-invading information can be shielded from wide view. Sometimes a resolution can be crafted that avoid tough questioning.
Takes Away Agency of Domestic Violence Accusers.
You might find it surprising that the woman accusing Ezekiel Elliott of abusing her wants him to get help, and told the NFL investigator that she did not want him suspended. Elliott at various points in his testimony suggests that he wanted the woman to get help.
In the legal system, each situation can be tailored for the specific dynamics of the people involved. Some jurisdictions do it better than others, and that legal and other experts struggle with these topics would suggest that sports leagues would likely do worse.
Punitive-focused approaches are typically not recommended for employers as they take away control of the abused and may deter reporting.
If you look at every single public discipline the NFL has got involved with relating to domestic violence, their actions have made it worse in significant ways to the person abused.
Do they not care? Do they not see this?

Bad for Players.

The NFL has spent millions of dollars and a great deal of time trying to buttress their conclusions in the Ezekiel Elliott case. The NFL argued in the Deflategate case that they are entitled by the process to do whatever the commissioner wants.
There is no way within the system to prove innocence. If the NFL lessens sentences or doesn’t invoke discipline, it is largely random and at their choice.
Some people want to put the blame and onus for fixing the discipline system on the players. To me, that is absurd. The NFL adopted the domestic violence policy unilaterally and then ignored the words of the policy. Does it matter what the specific words of the CBA and the rules are if Goodell at the end of the day claims he can do whatever?
Health. Safety. Fair process. Sensitive handling of issues like addiction and domestic violence. Following specific rules that apply to specific situations.
Why is it that the NFLPA has to fight so hard for these things that the NFL should want for themselves?
The NFL CBA had its general commissioner-strong structure for a long time. And though there were disputes over the years, there has been nothing like the strong use of power that started after the 2011 CBA. Prior to that CBA, though Goodell expanded the use of his powers, it was mostly for criminal actions with extreme cases. After it was signed, he started using his powers in far more expanded ways. Unilaterally. Making up new rule violations nobody had ever known were an issue. Suspending players indefinitely with no guidance for reinstatement.
I have suspected for a long time that the NFL has intentionally been unreasonable and unfair with their discipline as a bargaining chip to make more money in the next CBA. If you have studied their NFL’s actions over the years as it relates to labor, their general practice is to use maximum power and leverage, even if in the short term it hurts the product on the field.

Elliott Process Is Bad for Teams and Owners and Fans.

If you have a process that makes it impossible to prove innocence, then every player and team is at risk of an intentionally compromised product that fans pay for.
In a normal legal process, you do not have the thrown together procedure that the NFL has. Each time they make an ad hoc process that has its own faults. Behold my 2015 graphic I made to illustrate this:

In the Ezekiel Elliott case, the ad hoc process appears to be as follows:
One Main Investigator Taking Info Not Under Oath. Former prosecutor women who have prosecuted sex crimes are running the program so somehow that makes some sort of cover for a bad process.
Prosecutors tend to see things a prosecutors do, and also what they are being asked to do for the NFL is not typically what prosecutors do in their day-to-day work. It is a pretend legal process.
A former prosecutor, NFL employee Kia Roberts questioned the witnesses. The woman who is the subject of the abuse claim was interviewed two times formally, four times in follow-up questions.
Notably, Roberts did not find the woman claiming abuse to be a credible witness. And this isn’t even with opponent questioning. This conclusion was not in the final report. Nor was that shared in the suspension letter that was made available publicly.
In an actual legal system, more than one person hears the complainant’s testimony. If it ends up going to trial, an entire jury hears it.
In an actual legal system, more than one person cross-examines the complainant.
Kia Roberts, the only person who interacted with Elliott’s accuser recognized her significant credibility problems and would not have recommended discipline. She had in her notes an entire document with inconsistent statements. And notably, none of this was under oath testimony, like it would be in a real legal setting.
Report Manufacturing. Both Kia Roberts and another former prosecutor working for the NFL, Lisa Friel jointly wrote a report. The report left out a lot of information that favored Elliott. The report did not state Roberts’ concern with the credibility of the accuser nor did it contain her recommendation based on that for no discipline.
The NFL hired experts to opine on things that would not be persuasive testimony in a court room, despite all the discussions of metadata. That you see pictures of injuries does not say how and when and who if any caused the injuries. The NFL experts noted the limitation of their testimony.
This is typical of how the NFL puts their reports together. They put a lot of shaky information together and then decide the quantity of it makes it somehow persuasive.
Panel of Advisors. Then there was a meeting with Lisa Friel and the panel of four advisors. I’m not sure what the panel of advisors was supposed to do. How do you judge the credibility of evidence if you don’t see and hear the witnesses? They just read a report written in the attempt to withstand the inevitable litigation. Kia Roberts was not invited to this meeting despite being the person who did the actual investigation and would not have recommended discipline.
Goodell Drops the Hammer. The only direct witnesses are the parties involved. There are some manufactured claims that this or that shows something happened, but after reading all the information, it all equals zero. The threats she made to his career do not mean it didn’t happen, nor does it mean it did. There is no way with the evidence that Goodell had at his disposal that he should be able to say there was credible evidence that abuse occurred. By the nature of his own process where the only person who talked to the key witness thought she wasn’t reliable. Or in any process.
NFL Flunky Handles Arbitration Appeal. The NFL does not use a neutral arbitrator. When they have, they usually lose so they avoid that. For those who think a neutral arbitrator could fix this horrible process, they can’t. A neutral arbitrator can’t fix intrusive investigations, deterring reporting, the time and money and destructive power of the NFL process. Maybe it would overrule the worst of it but not before it hurt peoples’ lives without care.
The hearing officer, Harold Henderson rubber stamped Goodell’s decision, indicating in a relatively cursory way, “the record contains sufficient credible evidence to support whatever determinations he made.”

The Domestic Violence Policy is Bad for the NFL and Basic Decency.

The NFL is good at football. The further they get from football, the worse they tend to get. Employers are much better at directing employees to helpful resources and education. That’s not very satisfying to those looking to exact vengeance for players they don’t like, but I’m not sure how six game suspensions do that either.
I wrote this with the intention of expressing my disgust for the entire record and NFL process being used in the Ezekiel Elliott case. As that is something I think is lost when people are talking about how many games he plays and when and legal arguments between lawyers.
I loathe all the unintended messages and lessons the NFL is amplifying with how poorly they have handled this. It makes me sick.
My intended message: Fair processes that treat people like human beings matter, even if you don’t care about the people involved this time. Sometime it may matter to you.

All that said, if you have questions about this or legal questions on how this is going to be handled, please put questions or comments below. It is better for everyone if I do this here versus trying to do it on Twitter. Please, nothing abusive to anyone or I will not approve it through moderation. I like my comment section to be a resource to others and typically it is. Sometimes there is a delay in approval because I do it all manually. Thanks.

Ezekiel Elliott and the NFL Domestic Violence Policy

August 11, 2017 by Steph Stradley 5 Comments

When people on Twitter ask my opinion about sensitive situations like the Ezekiel Elliott suspension and the NFL Domestic Violence Policy, I think sometimes it is better to write a blog post to share complex thoughts.

I started writing about NFL discipline issues in 2006 after incoming NFL Commissioner Roger Goodell made player behavior and punishment a greater focus of his position. (You can find much of my NFL discipline writing in the NFL tag).

Fans would get angry at some of the decisions and wonder about issues of fairness and timing and bias. I generally have not been supportive of Goodell’s approach to discipline, as criminal justice issues are often complex and sensitive, and his typical stance is neither.

A note before reading this: Domestic violence is a raw, emotional topic. I do not like glib debates about such things as sports social media sometimes does with difficult issues that turn into tribal, team-focused thing. For what it is worth, I am not a Cowboys fan, I want nothing good to ever happen for the Cowboys ever, and if you like them, good for you. Life is better when you have things and people you love.

That should be irrelevant to the discussion, but as fan-oriented topics go, I have come to learn that some readers care about such things.

The NFL Domestic Violence Policy is relatively new and has been handled differently at different times. No matter what the NFL decides, various people will not like it because we all have our own life experiences that inform our views.

Given my background, here are my initial thoughts:

What is the Purpose of NFL Discipline?
In the modern world, laws and rules tend to be reactive to the emotion and anger of a particular event and not based on an evidence-based, fully-thought through philosophy. In the criminal justice world, this has lead to a wild expansion of acts that are now crimes on the state and federal level. Without knowing what you want to accomplish by a policy, whether it is in government or a sports league, it can lead to horrible, unintended consequences.
Most people without knowing details of the NFL Domestic Violence policy would go: “Domestic violence is bad, punitive policies by the NFL to fight it are good.” That is a natural human inclination but is the “I have a hammer, everything is a nail approach.”
If you are interested in exploring this general idea further, I would suggest reading these previous pieces of mine:
“What is sensible discipline for NFL player conduct?” via my blog, September 16, 2014
More specifically the logistics: “League Discipline and Legal Reality” via SI.com, September 19, 2014
“Presumption of Innocence or Everyone Knows They’re Guilty” via my blog, September 28, 2011
What are These Unintended Consequences?
There can be many purposes for discipline policies. Public relations. Vengeance. Anger. Deterrence. Education. Rehabilitation. I don’t think the policy as written does any of this well. Even an anger-based policy doesn’t deal with people who do not want to root for someone accused of domestic violence because what does six game suspensions do for that?
What I’m certain it does poorly is protect abused people. To me, if you have a policy that deters reporting and makes things worse for people experiencing domestic violence, then your policy is just well-intended, PR pandering.
Why?
Domestic violence is hard for the legal system to deal with for many reasons, which makes it nearly impossible for sports leagues to be any good at it. Roger Goodell may look like a stereotypical lawyer, but in fact, he is not one.
Though there are general statistics about domestic violence, at a micro level, each circumstance is different. For police officers, domestic violence calls are some of their most dangerous calls.
The police do not know anything about the people involved, their history, any substance abuse, weapons, who is abusing whom, whether the abused person will cooperate or become hostile to the officers due to the emotions involved, many things. They are forced to sort things out quickly. Often the information given is hazy, emotions are volatile, and independent witnesses limited.
Can Deter Reporting.
In the context of sports leagues, the fame, money, fan interest make muddle these complex domestic violence issues further.
I strongly recommend this Washington Post article: “For battered NFL wives, a message from the cops and the league, keep quiet.”
In key part: “If the league is serious about ending domestic violence in its ranks, it must rehabilitate instead of punish, they say. Penalties should be less draconian, so wives don’t worry about ending their husbands’ careers or threatening their families’ livelihoods. ‘They use [the NFL’s current policies] as leverage against you,’ says the ex-wife of the Saints player. ‘There’s abuse on every team. Everybody knows, but you know not to tell.’ Ultimately, she says, the case against Ray Rice has made the NFL less safe for women:
‘You will hear of a wife murdered before you hear another one come forward.’
I would also suggest reading Diana Moskovitz with her more specific Deadspin’s article, “Zero Tolerance for Domestic Violence Will Only Make it Worse.”
Very Privacy Invasive.
Making allegations against public figures is difficult in the context of sports. And no policy should deter reporting. The trend in criminal justice system is to take domestic violence reports more seriously and handle the cases more sensitively.
There is an inherent tension between listening to the wishes of the abused and making sure they have agency in the outcomes versus prosecuting cases even when they do not want to press charges or cooperate. Those issues are tough to work through in a situation by situation basis, and there is a lot of variations in jurisdictions with who does it better or worse.
With discipline issues, punishing players when the law sees them as an innocent person, can drive fanbases to their worst inclinations and extremes. They search for details of the abuse and turn it into an embrace debate topic.
If there is video or pictures of the incident leaked, it is worse because though some media outlets handle such things sensitively, in my experience, most do not.
News is reported. Video and pictures are more interesting and get reported more. If details are news, details get reported. A suspension and litigation and uncertain timing of suspensions make this bigger news.
People who have been abused typically do not want their abuse re-lived daily as a hostile sports debate topic.
The NFL doing their investigations can be extremely intrusive. Why should they cooperate with their abuser’s employer? Why should they share pictures of their worst moments that could be leaked and often are? Sometimes those who have experienced domestic violence want to remain private and create their own outcome that works in their lives if they are able.
How does this encourage the reporting of abuse or help the abused?
The NFL Policy Invites Embrace Debate: Using the Ezekiel Elliott Situation as an Example.
Ezekiel Elliott was accused of domestic violence. He has denied that it happened. In America, accused people who are not convicted of crimes are innocent.
Roger Goodell says that NFL players are held to a higher standard than that, but his standard isn’t by definition a standard. It is whatever Goodell says it is that day.
Because there are no real rules or process to what the NFL does, it invites debate of details. Those questions are justified given the shoddy investigations that have happened in the past. And the timing of when suspensions happen. Sports leagues are typically better at education and prevention than being fair adjudicators.
What are the specific immediate issues with the Ezekiel Elliott situation?
“Confidential” Letter Announcing Suspension. When the six game suspension was announced, a “CONFIDENTIAL” letter was shared on Twitter from NFL Network reporter, Ian Rapoport among others with details of the findings. It was later removed from the NFL hosting site, but the not confidential letter is still hosted elsewhere. [pdf}
Sharing those details from NFL hosted accounts is strange. Going through the details of what they found, invites fans and reporters to make the details an object for public debate.
From a league transparency perspective, I can understand why the NFL would like for people to know why they made the decision they did. From the perspective of encouraging people to report abuse, it is not helpful.
Timing. I’m not sure why the information as discussed in the letter took that long for a multi-billion dollar organization to investigate and decide. It is hard not to be suspicious of the timing of the suspension given the performance of the Cowboys in 2016. Legal processes often go slow, but others like it haven’t been this slow.
Limited Facts. Even without knowing all the details, you can tell that this has been written for purposes of future litigation. It provides a lot of details of the case in support of the suspension and few facts that would be in his defense. With limited documents that have been released in previous cases, this is typically how the NFL findings go.
From a process perspective, it can’t feel like anything other than a railroading job with the slanted way the letter is written and then released to the world.
Prosecution Focused. As a general rule, prosecutors tend to see everything from a prosecution focus. When the policy was first enacted, I thought the policy was written from more of a PR, prosecution punitive perspective with very little protections given to making sure they weren’t suspending people wrongfully.
The letter says that the Commissioner was counseled by independent advisors who reviewed the same evidence he did. To give him cover that this is somehow a fair process. Two of the four advisors listed are ex-prosecutors, who tend to see such issues as prosecutors do.
Process protections are important. If processes seem unfair, it can undermine the cause that is meant to be championed.
You can look at general statistics to try to make supportive policies for abused people but on an individual basis, false accusations happen. The suspension letter had a lot of words in it, but at its basic form, it was a who do you believe. Sometimes those assessments are wrong, and we know so because they are proven that way at a later date. Sometimes you never know.
Even when you are working on a case with confidential information, you rarely see the God’s eye truth as it happened but more how various people saw things.
Invites Player Response. This is now going to be litigated in the media because the NFL has invited the facts to be debated by using suspension as their main disciplinary tool. Elliott’s representatives have denied the NFL’s letter and have presented their own facts disputing what happened.
Treatment Requirement. Elliott has denied the actions happened. Though many people, both young and old, could benefit from counseling, requiring therapist approved by the league is a strange dynamic for someone denying an accusation.
Reducing Suspension. Sometimes Goodell reduces punishment based on the contrition of the player and his work to improve but that is impossible when the player denies something happened. It is always harder to prove a negative.
How Does This Help Anyone? Ultimately, nobody is going to be happy with this outcome. Fans will debate whether the punishment should be more or less or gone. Usually, that debate will go along the lines of 31 fanbases against one fanbase. Making things into a suspension, with often uncertain timing of when it takes place, transforms it into a debate topic, a betting topic, a fantasy football topic, which means that the debate will be mostly dumb and gross.
The next to the last paragraph of the “confidential” letter is a lie. It read in part:
“While this is a serious matter, it by no means suggests a belief that you cannot have a long and productive career in the NFL. You will have substantial resources available to you from your club, and from our office, to assist you in learning how to make better decisions and avoid problematic situations. Our goal is for you to have a successful career as possible.”
What resources? Is it their goal? He’s denied the allegations. The NFL is taking away money and job and adjudicating guilt with a made up standard so he can succeed more? With the way that the NFL typically handles suspensions, it appears more that they are interested in PR, and making the NFLPA have to fight them on discipline issues in the future.
Personally, I think all fans should care about this even if they do not care about the Cowboys and wish bad things to happen to them.
Despite all the words in the letter, the true standard wasn’t anything different than the head of WWE deciding a particular storyline or matchup. If there is no mechanism to prove one’s innocence in a particular process and few real safeguards, this could happen to any team and any player. And we should all agree that the NFL, as an institution, should not have suspension policies that make it more difficult for abused people and deter future reporting.
Next Steps. Typically, it becomes litigation. That’s what happens when the policy dictates suspensions, and large sums of money and precedent are at stake, none of which helps the person who reported the abuse.
Usually, the litigation arguments are technical and not whether it happened or not. Which keeps it in the news longer.
Have any additional questions, comments on this? Please put them below.
Please note: I moderate this blog myself, and I do not want any abusive comments about anyone or any commenter. Plenty of places on the web for abuse, but I don’t want a blog with my name on it to be a place for that. I moderate and answer questions when I have a little time. Thanks for making this place cool.

Related links:
“Roger Goodell’s Criminal Justice Role Was Doomed to Fail.” Originally published on July 1, 2009, reprinted here, September 13, 2014. (To be fair, it is a success if you enjoy lots of bad publicity and alienating fans).
“Is Roger Goodell an ‘Unthinking Moralist.” Originally published on April 1, 2008, reprinted here, September 9, 2015.

My Health and Fitness Pep Talk for All of Us

January 2, 2017 by Steph Stradley Leave a Comment

This is a 1963 photo of the CDC’s character Wellbee with Boston Red Sox players. Wellbee was created to encourage the public health of Americans. Wellbee is kinda creepy.

In the past, I’ve led online groups encouraging each other to be more healthy. One of them made the New York Times. (I had gained a lot more pounds than my baby was, and those pounds did not want to vacate the premises as fast as I wanted them to leave. It’s a nice article but inaccurately called me a “former lawyer”).
Over the years, I’ve been asked by some folks to write down some of my thoughts on health and fitness and inspired by the progress some of my friends have made, today I am doing a health and fitness pep talk for all of us.
Like with everything in life, take what works for you and consider the rest.
Most of these things are reminders of stuff you already know, and if you learn anything, all the better. Warning: This is unfashionably earnest writing and not cynical at all, so if that sort of thing doesn’t work for you, perhaps you should visit places online that are better for you.

General Health and Fitness Philosophy.

Being Kind to Yourself and Future Self. Ultimately with health and fitness things, the focus should be on things that don’t break your body down and are good for your short and long term health. When considering all choices, having respect for yourself and future self should be the primary directive.
This seems like a no duh, but look at all the diets and fitness things that people do that aren’t evidenced-based or good for one’s long-term health. Please consider not doing those things or at a minimum, make it a choice.
I’ve been spending a lot of time visiting senior living homes in recent years, and they make you think of such things.

Consult with Experts.

Medical Checkup. Have you been to the doctor and dentist recently? Sometimes medical reasons can interfere with your fitness objectives. Sometimes you can look and feel healthy but have metabolic, cholesterol, blood pressure etc issues. Visiting the dentist can maintain gum and teeth health, and make it easier to eat healthy foods.
Mental Health and Addiction. Depression lies. And as much as good nutrition and regular exercise can be of great help with many people’s mental status, depression can make it difficult to take care of yourself. The brain is the boss, so it gets priority. Find resources to get help.
Registered Dietitian. I thought I knew a lot about nutrition until I visited a Registered Dietitian. Typically, they will evaluate your current diet and educate you on portion sizes, practical nutrition tips, nutritional deficits, what is good for you as an individual. Whatever your current health status, they can make it more optimal. Knowledge is power. For some people, their insurance will cover the costs.

Mental Approaches.

“Get Your Mind Right.” I had the good fortune of working with fitness trainer, Todd Durkin, and one of his main mantras is “Get Your Mind Right.” I’m a big believer in “cognitive reframing” of trying to reframe negative, self-defeating thoughts into more positive ones that can create positive changes. To look at weaknesses and use that as a challenge to turn them into strengths and opportunities.
Be Your Own Best Friend. Sports psychologists often train athletes in their “self talk” and one of those things is to not talk to yourself in a way that is less kind than a good friend would talk to you.
Thou Shall Not Covet. It is weird how different societies value different things about people’s bodies. In basic terms, your body is what you use to tote your soul about. Trying to be something you are not and can’t be, never works out well. You be you.
You Are Not Immutable. That said, “you” as a person isn’t an unchangeable object that can only be one way. The you as a kid might have hated onions, now you love them. You may have preferences in your life, things that make you more or less comfortable, but you aren’t just a collection of characteristics that are only one thing. Your mind is powerful. You can choose things. Sometimes you can make choices and will those thoughts into reality. Make good choices, and try to make things happen.
The Perfect is the Enemy of the Good. Do something good for yourself. It doesn’t need to be perfect. Just do something. Make a choice to be good to yourself because if you don’t, who will?
Avoid Fatalism. Yes, being mindful of health and fitness things does not prevent bad things happening to your person. That said, a “we all die” mindset doesn’t account for preventable things or a full quality of life.
The Scale. Many theories abound about how much attention to pay to weight on the scale. I tend to think of it a bit like sports stats. It is one piece of data. It isn’t the be all and end all. It’s something worth knowing but can be misleading. I find my weight fluctuates during the course of a day, and when I’m at my fittest, I am often not at my lightest weight. My personal goals have nothing to do with this one stat and everything to do with my general health and the ability to do the things I want to do.

Nutrition.

Not a Fan of Diets. In my experience, the more one diets, the more one thinks about food and feels deprived. I prefer thinking in terms of living a generally healthy lifestyle based on just knowledge and moderation. That requires obtaining good information and buying into it and knowing what things you have difficulty moderating.
Typically, the American diet is too much processed food and too many calories from processed carbohydrates. Working with a Registered Dietitian can often figure out what specifically in your normal eating could be healthier for you.
If a specific temporary diet is healthy and sensible and jump starts a better lifestyle of eating, go for it. Just work toward something that you can live your life doing.
Food as Fuel. Treat your body at least as well as you treat your car. You wouldn’t put bad fuel in your car. The majority of your food choices should have some sort of positive nutritional value. I like thinking of trying to eat food closest to the way God made it.
Willpower is Overrated. If there are foods or beverages that you find hard to resist and aren’t beneficial to you, don’t have them in the house regularly.
Eating Out as a Health Opportunity. If you eat out a lot, learn about how to make healthier choices or the better of a bunch of bad choices. Also, find go-to restaurants where it is easier to make healthy choices. Even nutritionists can have difficulty determining calorie counts of restaurant foods, so be mindful of how things are prepared, portion sizes, calorically-dense foods. I like eating fish at restaurants because I rarely cook it at home and good restaurants usually have been sources for fresh fish.
Know How to Cook. When you cook at home, you know what is in your food and how it was prepared. There are ways of preparing foods that are very good for you and taste good. Just because you didn’t like your mom’s broccoli, doesn’t mean you can’t cook in a way that you like it. In the internet age, if you can follow directions, it is pretty easy to learn how to cook.
Food Diary. One of the best ways to educate yourself on the nutritional component of foods is to keep a food diary. After doing one for even two weeks, I learned a ton about calorie counts, nutritional components of foods I ate often.
Stay Hydrated. Sometimes people eat when they are really thirsty. I’ve seen a hat that says, “All of your problems ever are because you’re not drinking enough water.” There’s something to that. Sometimes when you are feeling off, just drinking some water does make you feel better. (Though like anything, too much is bad for you too. Moderation in everything).
Learn How to Read Food Labels. Working with a Registered Dietitian made me more mindful of food labels. The best info? Portion sizes (like some drink bottles and snacks are really 2+ portion sizes). 4 grams of sugar = 1 teaspoon which means a lot of common foods have many teaspoons of sugar.
Alcohol. For some people, alcohol doesn’t work for their lives and moderation is not an option. Sadly, I know too many people where it has put them in jail, hospital or the grave. For others, it is just a drag on their health, whether it is making them feel unwell or too many calories. Just keeping a food diary of the sugar and calories in alcohol might surprise you and make you think more moderately. If you need help with this, please find it.
Other Liquid Calories. It’s hard to maintain health being a daily soda drinker. There is just nothing good in it. Being mindful of liquid calories is important because they don’t make you feel full the same as solid ones do.
Mindful Eating and Food Because It’s There. Don’t eat food just because it is there. Stale popcorn at the theater. Donuts left in the break room. Candy dish. How many times do you eat something when you aren’t hungry? Taste the food that you are eating. If it isn’t worth the calories or nutrition, don’t eat it.
Early Bites are the Best Ones. You don’t have to finish your plate. Sometimes you just want a taste of something. It’s okay to taste things and not keep eating them until you are stuffed.
Fiber is Your Friend. Fiber naturally found in foods generally are a good thing for the functioning of your body and make you feel more full.
Don’t Be Weird About Food. Some people love food. Some people treat it like fuel. Whatever you do, if you are wondering if you are talking about food too much, maybe you are. It’s food. It’s cool that many humans get enjoyment from eating. That said, nobody wants to hear about your bloat tendencies or whatever weird biological whatnot.
Your Three Things. Be real. You likely know the things that are impeding your nutritional health. Some of them you may be resisting because you like them too much. Alcohol? Desserts? Sugars? Salty snacks? Sodas? High-calorie Starbucks nonsense? Fast food? Mindless eating? Not figuring out how you can like vegetables? Pick a few high impact things in your life, and work on those things first. Sometimes just doing it is easier on your mind than the dread of thinking about doing it.

Fitness.

Fitness As Holistic. Fitness is not just an outward thing but more having the suit that holds your soul be able to do the stuff you want to do in life now and the future. There’s a lot of parts to that, including body composition, strength, cardiovascular fitness, movement skills, balance, flexibility, agility, posture, healthy pain response, coordination, reaction time, mental focus and peace.
Some folks like to focus on their strengths and keep working on those. Some use their strengths to work on their weaknesses. Those strengths and weaknesses tend to evolve over the course of a life.
Just as I don’t like the thought of “diets,” I don’t like the idea of fitness as anything other than just one of the things that you do. Brush teeth, shower, move around regularly.
Figure Out How to Enjoy It. Sometimes there are things in life that are good for us but we don’t enjoy them. You can choose: 1. To avoid them; 2. To do them unhappily. 3. To find a way to enjoy them. I try to choose 3, though 1 and 2 get into the mix sometimes. Trying to find ways to enjoy things we don’t naturally enjoy can turn them into things we naturally enjoy.
Joy is good, and I recommend it.
In the technology world, sometimes they do that by “gamifying” them. That many people like games, so app makers and retailers make things more like games so people want to do them. I never liked to do cardio activities until I found ways to make them more interesting, like attending classes and reading fun stupid stuff while on cardio machines.
One of my favorite workouts is what I call the “Game of Thrones Workout,” where I binge watch a show to catch up and do various workout stuff in front of the TV.
Move About. Human beings aren’t meant to sit around all the time. And I find I feel better the more I move about. Everybody has a different starting fitness level, but find things to do every day to get your blood moving. If you have physical limitations, you can often find things to work around those limitations. If you sit a lot for your job, try to make sure your ergonomics of where you work are good and take regular breaks.
Shoes. You don’t need the latest workout shoes. I often buy the previous year’s shoes on sale and I rotate between a couple. Shoes are always cheaper and better than hip and knee replacements. Find ones that work and workout gear you like because you are more likely do exercise if you like what you are wearing.
Variety. Personally, I’m a big fan of a variety of fitness activities. I think variety is a good thing because it tends to reduce imbalances in your fitness.
Timing. You don’t have to do all your workout at one time. You can spread activity throughout the day. I like getting workouts done in the morning because things won’t pop up later that derail them, but sometimes that is not logistically feasible. Work a lot during the week? Then try to make sure every weekend has some fitness in it. One of the fittest and busiest people I know would always try to do about 15 minutes of intense fitness before hopping in the shower. Sometimes you just have to schedule when it makes time for your life but intend for it to happen.
Counterproductive Fitness. Sometimes people do ego types of fitness activities that are meant for their bodies to look like some sort of ideal but break the body down by putting unnecessary stress on joints and bones or go beyond their fitness level.
If you are working with a fitness trainer, learn about their background and their philosophy on such things.
Personally, though I have done long-distance running in the past with a run trainer, I do not like running as a way to maintain fitness. I find that for most body types, it is hard to engage in that as a regular activity and not break down. I can’t say I’m a big fan of Cross Fit generally for that reason, but some places have good sense and a good community that works for them. Your results may vary.
Gym Workouts. If you think you would like gym workouts, they have to work for your life. Try to get a gym that you can afford and that is not too far from your work or your house. Make it logistically easy for you to go by having workout clothes in your car if you come from work.
If you feel self-conscious about gyms, please don’t. The people running the gym don’t want that. And most people are too preoccupied with their own lives to care about your gym activities. And really, if someone is all judgy about you being at a gym, that says more about them than you. Most gyms have programs to familiarize you with their equipment and have folks that want to help you.
I enjoy going to gyms because I like the variety, and I try to think of it as my stress release spa.
Non-Gym Workouts. Obviously, you don’t need a gym to do a workout, and you don’t need a “workout” to get your blood going.
One of my favorite fitness books is called, “The Prison Yoga Project: A Path for Healing and Recovery” by James Fox. It is a book that was written primarily for prisoners who have limited workout space, access to instructors and who have significant challenges in dealing with trauma and stress. But for all people, it does a great job explaining yoga, yoga positions, and the mental benefits of connecting mind with body. It also happens to help people, details about the Prison Yoga Project here.
Find things that you can do and just do them. Everything else is just excuses.
Technology. There’s plenty of technology out there that encourages fitness. Wearables. Online support groups and videos. Video game workouts. Online information (preferably smart and evidence based). One of my friends likes doing workouts she finds on Pinterest.
It has never been easier to find things to help you move more but at the same time, plenty of distractions to stop you from moving.
Know Your Limits. Often in sports, there is the discussion of what is pain versus what is injury. Even with professionals, that is a tough line to draw. Whatever activity you are doing, listen to the pain signals that your body puts out and try not to overdo, because that can be counterproductive. I like the thought of not being in a competition with anyone.
Be the Tortoise. Much better to be consistent in your commitment to a healthier you than burning out all at once and getting discouraged. Have a setback? Every day is another day.
Try Stuff Out. If there is a workout in existence, I’ve tried it out and learned to enjoy pretty much all of them. My current favorites are Spinning and Pilates for how they make me feel in my mind and body, assuming that the music in the Spinning class isn’t too bad. Find the things that you enjoy and work for you, and give things a chance by doing them for a while.
Have a Great Life. Okay, I’m going to stop writing this because it is already too long but will likely update it with extra stuff over time. Hope you enjoyed this pep talk of stuff you likely already know but need a reminder. Keep kicking ass.

FAQs: Deflategate Second Circuit Rehearing Request

May 23, 2016 by Steph Stradley 10 Comments

Want to know more about Tom Brady and the NFLPA’s request for a Deflategate Second Circuit rehearing? You can find the Deflategate Brady En Banc Petition here if you wish to see what is said versus a summarized form. It also contains an appendix that has the Brady Second Circuit opinion.
When I get a lot of questions on social media about a topic, it is best to put them in a blog post so I don’t have to repeat myself. Here are some of the repeated questions:
What do you think of the Tom Brady – NFLPA’s petition?
Well written, of course. Is what you would expect from a Ted Olson filing.
What this filing does well is to explain why Tom Brady’s position is legally right, right from a public policy perspective, and also why he is in the right.
Brady being “in the right” is also known in the law as the “equities” of the situation. In this situation, it is the question, “Did Brady do anything wrong?”
Was that supposed to be the question on appeal? No. Is it something that seemed to trouble the Second Circuit in its majority opinion? Yes.
It is an art to subtly talk about something that isn’t supposed to be of legal significance, but certainly is a part of a larger argument about why you are legally right and from a public policy perspective also right. (Read the Rule 35 (B) Statement on the first page of Olson’s filing. Effective recitation of key facts that are relevant to why the majority opinion is wrong).
From my view, the NFL didn’t do a good job of that in front of District Court Judge Berman but did a better job of that with Paul Clement’s filing to the Second Circuit.
Ultimately, the battle is now: “Is the majority opinion bad/inconsistent with labor and arbitration jurisprudence?” Clement made that argument better in the first Second Circuit argument, but I think the NFLPA’s best argument on this is better. If it gets heard in a rehearing, which it may not.
What are Tom Brady’s chances of winning?
This case is difficult to handicap. Typically, requesting a rehearing or a rehearing en banc is the longest of long shots. But looking at previous cases to determine this case’s trajectory has mostly been a futile exercise.
This case’s journey through the federal courts is weird. Rollercoaster results of whether Tom Brady will play or not play 4 games. Labor winning an arbitration case at all. District court ruling overturned. High profile litigants. Huge public interest. Superstar appellate attorneys. Limited specific case law as it relates to the NFL’s power grab uses of CBA since 2011.
The topic is likely the dumbest in federal court history: Deflation of footballs that didn’t effect the result of a game. However, now this is recast as what are the powers of arbiters, and labor arbiters specifically, even ones with great powers.
Is the NFLPA’s argument too little, too late?
When the NFL hired Paul Clement to make their argument in front of the Second Circuit, the NFLPA probably should have matched with their own specialist. I didn’t find the briefing of either party to be particularly persuasive, but the NFLPA briefing was probably the worst I’ve seen from them. And it was clear that Jeffrey Kessler was surprised by the fact-oriented tone of the Second Circuit questioning.
(To be fair, the facts of this matter are muddled and confusing to those who even have a great familiarity with them, and often the side of the case that is easier to explain can be more persuasive with limited time).
That said, I think the majority opinion is wrong, and bad for the players, game, fans, and arbitration participants, and the Olson filing explains why generally.
In some ways, I think the majority opinion misstates the factual record to justify their own interpretation of what the CBA means versus what the parties agreed to when they entered into it. The idea that if the NFLPA wanted to limit the Commissioner’s authority, they could have done it. Well yes, yes they could, but nobody could have anticipated the bizarre process and decision making the NFL used and that they would ignore the rules they already have in place and have followed for years.
This is well summarized by Twitter user @Ugarles as:
“distinction between ‘we agreed Goodell could hear appeal’ and ‘on appeal, Goodell can do anything’.”
I think the Olson filing does a nice suscinct job of factually describing how peculiar the NFL’s actions were in handling this discipline issue.
Being able to persuade judges that it is enough for a rehearing is tough however. Judges don’t want to waste judicial resources by rehearing something already heard. That said, judges also don’t want to create labor chaos by a ruling that is bad for arbiters and labor. Olson’s position is that if an arbiter can make up new reasons for punishment on appeal that would create chaos generally.
I’d like to see these positions more fully briefed and argued. Between two powerhouse appellate lawyers. Perhaps the judges will too.
(Updated questions on amicus briefs, May 25, 2016)
What is an amicus brief? Does the court have to consider them? Have the Patriots “joined” the lawsuit?
An amicus curiae brief means “friend of the court.” It comes from someone who is not a party but has relevant, hopefully useful information to give the court. They are usually offered to the court when a decision doesn’t just effect the parties involved with the dispute but may have larger implications to the law.
They are of varying helpfulness depending on what is important to a particular judge and how they are written. How much the court considers them is very individual to the judges. In cases of great interest, some typically are trash, some are good.
I’ve seen some questions based on early news reports about whether the Patriots amicus brief means that the Patriots have “joined” Brady’s appeal. Technically no. They are not becoming a technically a party to the lawsuit even though Brady is their player, and they are a part of the NFL. It is pretty weird though given their relationship to the parties.
I know some fans were disappointed that the Patriots didn’t sue the NFL. That as an option was never ideal. Even offering this amicus brief is a pretty aggressive move given what latitude Roger Goodell has in making up punishments based on how he feels about things.
What do you think of the physics professors’ amicus brief? The Patriots’ brief?
You can read the Physics Professors’ amicus brief here. You can read the Patriots’ amicus brief here.
I think it goes to the equity issue I discussed before. Judges are human beings, and humans tend to prefer not letting people getting away with bad acts under the cover of legal standards. Lawyers and scientists tend to be more disturbed by the Exponent Report being a basis for the punishment because: 1. Junk science is not admissible in courts; 2. Scientists don’t like stuff being called science that is not real science and is total BS and wrong.
Imagine that.
That said, the science hasn’t been a huge part of the appellate record because of the weird history of the litigation. Judge Berman at the District Court level focused on some more narrow, appellate issues, and ruled in the manner that ends up not sending the case back to the arbiter. How? If Brady didn’t have proper notice, that is not something that is curable after the fact.
The Patriots brief is more focused on the specific facts that the headlines in this case often got incorrect if you didn’t carefully review the record.
Usually, facts are not a big deal this far into the appellate process. However….
The most jaw-dropping moment at the Brady appeal hearing was Judge Denny Chin asking the following to NFLPA’s Jeffrey Kessler: “When you read all the evidence, the text messages, the evidence of the ball tampering was compelling if not overwhelming…So how do we as appellate judges second-guess the four-game suspension?”
Wait, what?
Anyone very familiar with the factual record would know this is bizarre. And no one anticipated the court would veer in this very fact based direction as a part of the appellate argument.
(Though notably, the NFL’s brief in front of the appeals court did a better job trying to sway the court on the facts than the NFLPA brief did as just a way of saying that they are not just legally in the right, but actually right. As the Patriots’ amicus brief notes, some of those “facts” seemed to be ~~lies~~ mistatements of the record. The majority opinion recitation of the facts contains a number of inaccuracies, though those alone aren’t enough to grant a rehearing).
There really wasn’t an opportunity for Brady to refute in writing or verbally a great deal of this evidence due to how the process worked. Or didn’t work, more accurately.
The Wells Report was not a format to do that. The appeal transcript does it to a limited degree, but there was a short time limit to deal with both factual issues and technical science issues. Then the appeal ruling brings up new issues, that are completely refutable, but when the case goes to the appellate level after an arbitration is concluded, only certain factual issues are relevant to the standard on appeal.
The majority opinion bakes in a lot of “facts” in their ruling but I think, in part, what the amicus briefs are trying to do is demonstrate why the lack of notice and the changing of grounds against Brady at different levels truly matters and isn’t just lawyer tap dancing.
The facts from the amicus brief illustrate the challenges Brady faced in trying to defend himself. That the process issues that Brady is appealing are not hypertechnical but rather basic things essential for an arbitration and are a part of the CBA. That this is not the deal that the NFL or NFLPA struck, and it is not how arbitrations appeals should happen between labor and management anywhere.
For more information specific to the CBA and the NFLPA’s position that they want the NFL to follow the CBA, rules, and the fairness baked into it under labor law, I suggest visiting this post I wrote in July 2015 called “Answering Your Deflategate Legal Questions.”
Should we expect more amicus briefs?
Perhaps. High profile matters often get them. Now the factual reasons that support the Brady position have been offered to the court, it would not be surprising to hear from labor organizations. Brady would likely welcome that sort of good filing to demonstrate that this isn’t just a specific weird NFL CBA issue but rather something that has larger implications as it would create chaos and uncertainty in arbital proceedings.
It would be interesting if there were big business amicus briefs in support of the NFL position. I’m not sure it is in their interest given the “Pigs get fed, hogs get slaughtered” theory. These days business arbitration law has been under fire of being too pro-business. And that there has been calls for more protections for workers and consumers. That legislators should make arbitration a freely chosen thing and not inherently unfair to individuals. The NFL process is so messed up who would want to claim that as something that should be the new normal? OK, some might, but I’m not sure I’d advise it.
Should I submit an amicus brief?
If you need to ask me this question, the answer is no.
Isn’t this a huge waste of money?
Yes. The millions and millions of dollars spent on this could be spent in much better ways. Burning it for heat would be more useful.
The owners have more money to spend then the players so it probably works to their interests to make the union use their money on things like this instead of saving it for a war chest for other things, like preparing for the next CBA.
Even if the NFL lost, they still win because a labor loss likely just means they need to be reasonable and act like other leagues. If they lost, it really isn’t a terrible precedent, because they can just tweak their discipline process again, and aim it at another player in the future. If they lost, they don’t miss any games or lose any salary or career opportunities.
But the NFLPA had to fight every single one of the excessive power grabs of Goodell, ones that were not fathomable when the CBA was signed in 2011. The Second Circuit ruling if it stands says Goodell can do whatever he wants basically. There is no process for a player to maintain innocence. If the player doesn’t cooperate, that is held against him. If he does cooperate, it isn’t enough.
This section of my FAQ is very cynical. Don’t try to tell me that it isn’t true though. Okay, this I’m bored with this blog post, it’s kind of a bummer so I’m going to lazily conclude it.
Let’s just all agree we wish the NFL handled things in a more normal and professional way.
More Questions?
Have any more legal questions or thoughts about the Deflategate Second Circuit rehearing request? Please put them in the comments below and I will try to answer as I can. They are all moderated by me, so please keep them civil and germane because it makes it less combative and more useful to everyone just looking for information. I reserve the right to not publish ones that are potstirring/abusive because I don’t want to contribute to that nonsense. Also, please read the comments before commenting yourself because sometimes your questions are already answered.
If you haven’t already read my posts on NFL discipline over the years, here’s more than you would likely want to know. I answer a lot of general Deflategate questions there.
Also, please note for those who care about such things. I am not a Patriots fan. I am a Texans fan. It would likely benefit my favorite team if Tom Brady did not play against the Texans this season. That said, when I analyze anything, I try to do it neutrally, while looking from all perspectives and without specific benefit to mine.